Supamill Inc. dba Bespoke Healthcare (“Bespoke Healthcare,” “we,” “us,” or “our”) provides our services (described below) and related content to you through our website(s) located at https://bespoke.healthcare/ (the “Site”) and through our mobile applications and related technologies (“Mobile Apps”, and collectively, such Mobile Apps and the Site, including any updated or new features, functionality and technology, the “Service(s)”). All access and use of the Service is subject to the terms and conditions contained in these Terms of Service (as amended from time to time, these “Terms of Service”). For purposes of these Terms of Service, “you” or “your” means you as a user of the Service. By accessing, browsing, or otherwise using the Site, Mobile Apps, or any other aspect of the Service, you acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you do not accept the terms and conditions of these Terms of Service, you will not access, browse, or otherwise use the Service.
We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms of Service were last updated. You may read a current, effective copy of these Terms of Service by visiting the “Terms of Service” link on the Site, available at https://bespoke.healthcare/legal/terms/ , and under the “Legal - Terms of Service” section of our Mobile Apps. We will also notify you of any material changes, either through the Service user interface, a pop-up notice, email, or through other reasonable means. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service. You should periodically visit this page to review the current Terms of Service so you are aware of any revisions. If you do not agree to abide by these or any future Terms of Service, you will not access, browse, or use (or continue to access, browse, or use) the Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.
THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTIONS, AS SET FORTH BELOW) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST Supamill Inc. dba Bespoke Healthcare ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, REPRESENTATIVE, OR CONSOLIDATED ACTION OR PROCEEDING, WHETHER IN COURT OR IN ARBITRATION, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 (OR YOUR LOCAL EMERGENCY SERVICES NUMBER) IMMEDIATELY. DO NOT RELY ON THE SERVICE FOR EMERGENCY MEDICAL NEEDS. THE SERVICE IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. PLEASE CAREFULLY REVIEW THE “IMPORTANT MEDICAL DISCLAIMER; NOT MEDICAL ADVICE” SECTION BELOW.
Your Privacy: At Bespoke Healthcare, we respect the privacy of our users. For more information please see our Privacy Policy, located at https://bespoke.healthcare/legal/privacy/ and under the “Legal - Privacy Policy” section of our Mobile Apps (the “Privacy Policy”). By using the Service, you consent to our collection, use and disclosure of personal data and other data as outlined therein.
Additional Terms: In addition, when using certain features through the Service, you will be subject to any additional terms applicable to such features that may be posted on or within the Service from time to time. All such terms are hereby incorporated by reference into these Terms of Service.
Service Description: The Service is designed to provide users with an artificial intelligence (“AI”)-powered health and wellness platform, through which users may receive: (a) AI-generated personalized wellness, fitness, and nutrition plans and recommendations informed by the goals, preferences, health information, and connected wearable device data that you provide; (b) AI-generated meal plans and grocery lists; (c) workout guidance and explanations; (d) proactive AI-generated notifications and insights (“Pulses”) based on your wearable data, training activity, and nutrition logs; (e) food logging, workout logging, and related tracking tools; (f) educational wellness content; and (g) supplementary human coaching services provided by strength coaches, certified nutritionists, and registered dietitians, as further described below. Certain features of the Service, including coaching services, may be available only to paid subscribers.
Important Medical Disclaimer; Not Medical Advice: THE SERVICES ARE DESIGNED TO SUPPORT GENERAL HEALTH AND WELLNESS AND ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE SERVICES ARE NOT INTENDED TO CONSTITUTE MEDICAL ADVICE. BESPOKE HEALTHCARE IS NOT A LICENSED MEDICAL PROVIDER OR HEALTHCARE PROVIDER AND DOES NOT ENGAGE IN THE PRACTICE OF MEDICINE, NURSING, DIETETICS, NUTRITION, PHYSICAL THERAPY, MENTAL OR BEHAVIORAL HEALTH CARE, OR ANY OTHER LICENSED HEALTHCARE PROFESSION. THE SERVICE (INCLUDING, WITHOUT LIMITATION, ALL AI-GENERATED PLANS, RECOMMENDATIONS, MEAL PLANS, GROCERY LISTS, WORKOUT EXPLANATIONS, PULSES, AND OTHER CONTENT, AND ALL COMMUNICATIONS FROM COACHES (AS DEFINED BELOW)) DOES NOT CONSTITUTE, AND IS NOT A SUBSTITUTE FOR, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. Use of the Services does not create a doctor-patient, therapist-patient, or other professional healthcare relationship. Always seek the advice of your physician or another qualified healthcare provider with any questions you may have regarding a medical condition, and before beginning any fitness, nutrition, weight management, or other wellness program (including any plan or recommendation made available through the Service), particularly if you have a pre-existing medical condition, are pregnant or nursing, are recovering from an injury or surgery, or have any other health concern. Never disregard professional medical advice, or delay in seeking it, because of anything you have read, received, or experienced through the Service. If you think you may have a medical emergency, call your doctor or 911 (or your local emergency services number) immediately. You acknowledge that participation in any fitness, nutrition, or other wellness activity carries inherent risks, and, to the fullest extent permitted by applicable law, you assume full responsibility for any risks, injuries, or damages, known or unknown, arising out of or relating to your participation in any such activities.
Coaching Services; Affiliated Practitioners: The Service may provide you with access to supplementary human coaching services delivered through in-app chat and text messaging by three types of coaches: (a) strength coaches, who focus on fitness, training, and body composition; (b) certified nutritionists, who focus on healthy eating habits, weight goals, meal planning, and general nutrition wellness; and (c) registered dietitians (each, a “Coach,” and collectively, “Coaches”). Strength coaches and certified nutritionists provide general wellness coaching services only; interactions with these Coaches are provided for general wellness and informational purposes only and do not constitute medical advice, medical nutrition therapy, or the practice of any licensed healthcare profession. Registered dietitians are licensed or credentialed nutrition professionals (“Affiliated Practitioners”) who may provide clinical nutrition services (including medical nutrition therapy), in each case solely to the extent permitted within such Affiliated Practitioner’s applicable scope of practice and licensure. ANY PROFESSIONAL SERVICES PROVIDED TO YOU BY AN AFFILIATED PRACTITIONER ARE PROVIDED BY THAT AFFILIATED PRACTITIONER IN THEIR INDIVIDUAL PROFESSIONAL CAPACITY, AND NOT BY BESPOKE HEALTHCARE. BESPOKE HEALTHCARE DOES NOT ITSELF PROVIDE ANY MEDICAL, CLINICAL, OR OTHER LICENSED PROFESSIONAL SERVICES, AND DOES NOT DIRECT OR CONTROL THE PROFESSIONAL JUDGMENT OF ANY COACH OR AFFILIATED PRACTITIONER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BESPOKE HEALTHCARE AND THE OTHER BESPOKE HEALTHCARE PARTIES (AS DEFINED BELOW) DISCLAIM ALL LIABILITY ARISING OUT OF OR RELATING TO ANY SERVICES, ADVICE, OR OTHER COMMUNICATIONS PROVIDED BY ANY COACH OR AFFILIATED PRACTITIONER. No Coach will provide medical diagnoses, prescribe medications, or provide treatment for any medical condition, and no Coach interaction is a substitute for care from your physician or other qualified healthcare provider. If a Coach determines that your question or concern falls outside the scope of the Service or of such Coach’s permitted scope of practice, the Coach may decline to respond, and Bespoke Healthcare or the Coach may suggest that you consult an appropriate licensed professional; any such suggestion or referral is provided as a courtesy only and does not create a patient-provider relationship between you and Bespoke Healthcare. Coach communications may be subject to automated or other quality and compliance review by Bespoke Healthcare. Coach response times may vary and are not guaranteed. You are solely responsible for evaluating, and for all decisions and actions you take based on, any information, suggestions, or support provided by any Coach or Affiliated Practitioner or otherwise made available through the Service.
Health Data and Wearable Integrations: The Service allows you to provide, and to connect third-party wearable devices and health platforms (such as Apple Health, Fitbit, WHOOP, Garmin Connect, and Google Fit) that provide, data about you and your health, fitness, and nutrition (collectively, “Health Data”). You are solely responsible for the accuracy and completeness of all Health Data that you provide to the Service or authorize the Service to collect. You acknowledge that the AI-generated plans, recommendations, and other outputs of the Service are based on the Health Data and other information made available to the Service, that Bespoke Healthcare does not independently verify Health Data (including Health Data received from third-party devices or platforms), and that outputs of the Service may be inaccurate, incomplete, or inappropriate for your individual circumstances, including if the underlying Health Data is inaccurate or incomplete. Our collection, use, and disclosure of Health Data and other personal information is governed by our Privacy Policy.
Your Registration Obligations: You may be required to register with Bespoke Healthcare or provide information about yourself (e.g., name and email address) in order to access and use certain features of the Service. If you choose to register for the Service, you agree to provide and maintain true, accurate, current, and complete information about yourself as prompted by the Service’s registration form. Registration data and certain other information about you are governed by our Privacy Policy. The Service is intended for users who are at least 18 years of age. If you are under 18 years of age, you are not authorized to access or use the Service, with or without registering. By accessing or using the Service you represent and warrant that you are at least 18 years of age.
Member Account, Password, and Security: You are responsible for maintaining the confidentiality of your password and account details, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Bespoke Healthcare of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Bespoke Healthcare and its current and future affiliates (collectively, “Bespoke Healthcare Affiliates”) will not be liable for any loss or damage arising from your failure to comply with this paragraph.
Modifications to Service: Bespoke Healthcare reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Bespoke Healthcare and Bespoke Healthcare Affiliates will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that Bespoke Healthcare may establish general practices and limits concerning use of the Service, including the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Bespoke Healthcare’s or its third-party service providers’ servers on your behalf. You agree that Bespoke Healthcare has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Bespoke Healthcare reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Bespoke Healthcare reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages, and other materials (“content”) that you make available to Bespoke Healthcare, including by uploading, posting, publishing, or displaying (hereinafter, “upload(ing)”) via the Service or by emailing or otherwise making available to other users of the Service (collectively, “User Content”). The following are examples of the kinds of content and/or uses that are illegal or prohibited by Bespoke Healthcare. Bespoke Healthcare reserves the right to investigate and take appropriate legal action against anyone who, in Bespoke Healthcare’s sole discretion, violates this provision, including removing the offending content from the Service, suspending or terminating the account of such violators, and reporting the violator to law enforcement authorities. You agree to not use the Service to:
email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, discriminatory, or otherwise objectionable; or (vii) in the sole judgment of Bespoke Healthcare, is objectionable or which restricts or inhibits any other person from using or enjoying the Service or which may expose Bespoke Healthcare or its users to any harm or liability of any type;
interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
violate any applicable local, state, national, or international law, or any rule, guidance, or regulations having the force of law (“Laws”);
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
solicit personal information from anyone under the age of 18;
harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
further or promote any criminal activity or enterprise or provide instructional information about illegal activities;
obtain or attempt to access or otherwise obtain any content or information through any means not intentionally made available or provided for through the Service;
circumvent, remove, alter, deactivate, degrade, or thwart any of the content protections in or geographic restrictions on any content (including Service Content (as defined below)) available on or through the Service, including through the use of virtual private networks; or
engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods.
If you are blocked by Bespoke Healthcare from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address or virtual private network).
Competitors: No employee, independent contractor, agent, or affiliate of any competing health, wellness, fitness, or nutrition technology company is permitted to view, access, or use any portion of the Service without express written permission from Bespoke Healthcare. By viewing, using, or accessing the Service, you represent and warrant that you are not a competitor of Bespoke Healthcare or any Bespoke Healthcare Affiliate, or acting on behalf of a competitor of Bespoke Healthcare or any Bespoke Healthcare Affiliate in using or accessing the Service.
Fees: To the extent the Service or any portion thereof is made available for any fee, you may be required to select a payment plan and provide information regarding your credit card or other payment instrument to the applicable Distribution Channel (as defined below) or Payment Processor (as defined below). You represent and warrant to Bespoke Healthcare that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with Bespoke Healthcare or the applicable Distribution Channel or Payment Processor of any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Bespoke Healthcare the amount that is specified in the payment plan in accordance with the terms of such plan and these Terms of Service. If your payment plan includes an ongoing subscription that is automatically renewed periodically, you hereby authorize Bespoke Healthcare (through the applicable Distribution Channel or Payment Processor) to bill your payment instrument in advance on such periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges, you must let Bespoke Healthcare know within sixty (60) days after the date that Bespoke Healthcare charges you, or within such longer period of time as may be required under applicable Law. Billing disputes and refund requests for purchases made through a Distribution Channel are handled by, and should be submitted to, the applicable Distribution Channel in accordance with its policies (for example, through Apple’s refund request process). We reserve the right to change Bespoke Healthcare’s prices. If Bespoke Healthcare does change prices, Bespoke Healthcare will provide notice of the change through the Service user interface, a pop-up notice, email, or through other reasonable means, at Bespoke Healthcare’s option, at least thirty (30) days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. You will be responsible for all taxes associated with the Service, other than taxes based on Bespoke Healthcare’s net income.
Consult Credits: The Service may offer consumable credits that can be redeemed for eligible features of the Service, such as consults with Coaches (“Consult Credits”). Consult Credits are a limited, revocable, non-transferable license to redeem eligible features of the Service. They are not money or property and do not constitute a deposit, stored value, or a gift card or gift certificate. Consult Credits included with a subscription plan accrue while your subscription is active and are subject to an accumulation limit: once your unused plan credits reach the equivalent of three (3) months of plan credits, no additional plan credits will accrue until your balance falls below that limit. You may purchase additional Consult Credits at any time. Unless otherwise required by applicable Law, Consult Credits have no cash value and are not redeemable or refundable for cash. Purchases of Consult Credits through a Distribution Channel are subject to the applicable Distribution Channel’s terms, conditions and billing policies.
Payment Processing: Notwithstanding any amounts owed to Bespoke Healthcare hereunder, BESPOKE HEALTHCARE DOES NOT PROCESS PAYMENT FOR ANY SERVICES. To facilitate payment for the Service via bank account, credit card, or debit card, we use third-party payment processors (collectively, the “Payment Processors”, and each, a “Payment Processor”). These payment processing services are provided by the Payment Processors and are subject to the applicable Payment Processor’s terms and conditions, privacy policy, and all other relevant agreements (collectively, the “Payment Processor Agreements”). By agreeing to these Terms of Service, users that use the payment functions of the Service also agree to be bound by the applicable Payment Processor Agreement for the payment function the user is using, as the same may be modified by the applicable Payment Processor from time to time. If you purchase a subscription or other paid feature through a Distribution Channel, your payment will be processed by the applicable Distribution Channel, and such payment (and any related renewal, cancellation, or refund) will also be subject to the applicable Distribution Channel’s terms, conditions, and billing policies. If applicable, you hereby authorize the applicable Payment Processor to store and continue billing your specified payment method even after such payment method has expired, to avoid interruptions in payment for your use of the Service. Please contact the applicable Payment Processor for more information. Bespoke Healthcare assumes no liability or responsibility for any payments you make through the Service.
Refunds and Cancellations: Payments made by you hereunder are final and non-refundable unless otherwise determined by Bespoke Healthcare. You may cancel your subscription at any time through your account settings in the Mobile Apps (which will direct you to the subscription management page of the applicable Distribution Channel), or through the applicable Distribution Channel directly (for example, for purchases made through Apple, in your device settings under your Apple ID > Subscriptions, or in the Subscriptions section of the App Store app). A subscription purchased through a Distribution Channel can be cancelled only through that Distribution Channel. Emailing us is not sufficient to cancel such a subscription, although you may contact us at support@bespoke.healthcare with any questions about your subscription. Unless otherwise stated in the Service or required by applicable law, cancellations take effect at the end of your then-current billing period, and you will retain access to the applicable paid features of the Service until that time. If you purchased your subscription through a Distribution Channel, your cancellation and any refund may be governed by, and may need to be effected through, the applicable Distribution Channel.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, grant access to, transfer, or otherwise use or exploit any portion of the Service for any commercial purposes. The Service is for your personal use.
Mobile Services: The Service includes certain services that are available via a mobile device, including (a) the ability to upload content to the Service via a mobile device, (b) the ability to browse the Service and the Site from a mobile device, and (c) the ability to access certain features and content through Mobile Apps (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
Telephonic Communications Services: By using the Service and providing us with your telephone number(s), or by sending a text message to a telephone number that we make available, you are consenting to be contacted by Bespoke Healthcare or Bespoke Healthcare Affiliates by telephone (including on a recorded line), automated calling, automated telephone dialing system calling, automated system calling, artificial voice or pre-recorded calling, text message, SMS and/or MMS message, fax, or other telephonic or electronic means for marketing, solicitation, informational, or another purpose, even if your telephone number(s) is registered on the National Do Not Call List, a state Do Not Call List, or the internal Do Not Call List of Bespoke Healthcare or Bespoke Healthcare Affiliates. Text messaging is currently a primary means by which the Service communicates with users, including for Coach communications, Pulses, and other Service updates. You may be required to respond to an initial call or message as instructed to complete your registration and confirm enrollment to receive such calls, texts or other telephonic communications. You do not have to consent to receive calls or text messages from Bespoke Healthcare or Bespoke Healthcare Affiliates for marketing or solicitation purposes to purchase Bespoke Healthcare’s products or services. In the event you no longer wish to receive such calls, text messages or other telephonic communications, you agree to notify Bespoke Healthcare or Bespoke Healthcare Affiliates, as applicable, directly. In the event you change or deactivate your telephone number, you agree to promptly update your Bespoke Healthcare account information to ensure that your messages are not sent to a person that acquires your old telephone number.
There is no additional charge for telephonic communications, but your carrier’s standard message and data rates apply to any calls, text messages, SMS or MMS messages you send or receive. Your carrier may prohibit or restrict certain mobile features and certain mobile features may be incompatible with your carrier or mobile device. We are not liable for any delays in the receipt of, or any failures to receive, any calls, text messages, SMS or MMS messages, as delivery is subject to effective transmission by your mobile carrier and compatibility of your mobile device. Please contact your mobile carrier if you have any questions regarding these issues or your mobile data and messaging plan. You acknowledge that text messages, telephone calls, and emails may be unencrypted and carry a risk that the information contained in them, including information about your health, could be accessed by an unauthorized third party, and that Bespoke Healthcare cannot guarantee the security or confidentiality of communications sent to you outside of the Service.
By reply to any text, SMS, or MMS message you receive from us, you may text “STOP” to cancel or “HELP” for customer support information. If you choose to cancel text, SMS, or MMS messages from us, you agree to receive a final message from us confirming your cancellation.
To the extent the Service provides you with functionality that permits you to invite others to use the Service by providing the numbers of those you want to invite or by selecting the individuals you want to invite from your contacts list (if you have uploaded one), and taking the actions to send those individuals an invitation call or message, then by inviting others to use the Service, you represent to us that those you invite consent to receive the invitation calls or messages and that you are authorized to convey that consent to us.
Mobile App License: Subject to these Terms of Service, Bespoke Healthcare hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to (a) install the Mobile App on one mobile device and (b) use the Mobile App for your own personal use solely to access and use the Service. For clarity, the foregoing is not intended to prohibit you from installing the Mobile App on another device on which you also agreed to these Terms of Service. Each instance of these Terms of Service that you agree to in connection with downloading a Mobile App grants you the aforementioned rights in connection with the installation and use of the Mobile App on one device.
Ownership; Restrictions: The technology and software underlying the Service or distributed in connection therewith are the property of Bespoke Healthcare, Bespoke Healthcare Affiliates, and their licensors (including the Mobile Apps, the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, or sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Bespoke Healthcare.
Third-Party Distribution Channels: Bespoke Healthcare offers Software that may be made available through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channel(s)”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Service are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third-party products and services in connection with your use of the Service, you agree to comply with all applicable terms of any agreement for such third-party products and services.
Apple-Enabled Software: With respect to Mobile Apps that are made available for your use in connection with an Apple-branded product (the “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Bespoke Healthcare and you acknowledge that these Terms of Service are concluded between Bespoke Healthcare and you only, and not with Apple Inc. (“Apple”), and that as between Bespoke Healthcare and Apple, Bespoke Healthcare, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the Apple Media Services Terms and Conditions.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product that you own or control, as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions, except that such Apple-Enabled Software may be accessed and used by other accounts associated with the purchaser via Apple’s Family Sharing or volume purchasing programs.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software, if any, to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be Bespoke Healthcare’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
Bespoke Healthcare and you acknowledge that Bespoke Healthcare, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation.
In the event of any third-party claim that the Apple-Enabled Software or your possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Bespoke Healthcare and Apple, Bespoke Healthcare, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints, or claims with respect to the Apple-Enabled Software, they should be directed to Bespoke Healthcare as follows:
support@bespoke.healthcare
(443) 994-7726
77 Van Ness Avenue, Mailbox #2018San Francisco, CA 94102.
You must comply with applicable third-party terms of agreement when using the Apple-Enabled Software, e.g., your wireless data service agreement.
Bespoke Healthcare and you acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third-party beneficiary thereof.
Google-Sourced Software: The following applies to any Mobile App you download from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that these Terms of Service are between you and Bespoke Healthcare only, and not with Google LLC (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of Google Play where you obtained the Google-Sourced Software; (d) Bespoke Healthcare, and not Google, is solely responsible for Bespoke Healthcare’s Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms of Service; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms of Service as it relates to Bespoke Healthcare’s Google-Sourced Software.
Open Source Software: The Software may contain or be provided together with open source software. Each item of open source software is subject to its own license terms, which can be found at: https://bespoke.healthcare/legal/open-source/, in the software documentation or the applicable settings, help, legal, notice, or about menu or source files. If required by any license for particular open source software, Bespoke Healthcare makes such open source software, and Bespoke Healthcare’s modifications to that open source software (if any), available by written request to support@bespoke.healthcare. Copyrights to the open source software are held by the respective copyright holders indicated therein.
Service Content: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and Laws. Except as expressly authorized by Bespoke Healthcare, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content that you upload to or make available through the Service in accordance with these Terms of Service. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited.
Trademarks: The Bespoke Healthcare name and logos are trademarks and service marks of Bespoke Healthcare (collectively the “Bespoke Healthcare Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Bespoke Healthcare. Nothing in these Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Bespoke Healthcare Trademarks displayed on the Service without our prior written permission in each instance. All goodwill generated from the use of Bespoke Healthcare Trademarks will inure to our exclusive benefit.
Third-Party Material: Under no circumstances will Bespoke Healthcare or any Bespoke Healthcare Affiliate be liable in any way for any content or materials of any third parties (including users), including for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Bespoke Healthcare does not pre-screen content, but that Bespoke Healthcare and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Bespoke Healthcare and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Bespoke Healthcare, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content: You represent and warrant that you own all right, title, and interest in and to your User Content, including all copyrights and rights of publicity contained therein. You hereby grant Bespoke Healthcare and Bespoke Healthcare Affiliates, and their successors and assigns, a non-exclusive, worldwide, royalty-free, fully paid-up, transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, and irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content (including any name, username, voice, image or likeness incorporated therein or otherwise provided by you), in any form, medium or technology now known or later developed, (a) in connection with the operation of the Service; (b) to provide, develop and improve the Service and other offerings of Bespoke Healthcare and/or Bespoke Healthcare Affiliates; and (c) as otherwise set forth in our Privacy Policy. Notwithstanding the foregoing, Bespoke Healthcare does not use, and does not permit any third party to use, your User Content to train or fine-tune artificial intelligence models. You also agree that Bespoke Healthcare may remove metadata associated with your User Content and you irrevocably waive any claims and assertions of moral rights or attribution with respect to your User Content. You assume all risk associated with your User Content and the transmission of your User Content and you have sole responsibility for the accuracy, quality, legality, and appropriateness of your User Content.
You hereby authorize Bespoke Healthcare and Bespoke Healthcare Affiliates and their third-party service providers to collect and analyze User Content and other data and information relating to the Service and related systems and technologies and derive statistical and usage data relating thereto (collectively, “Usage Data”). Bespoke Healthcare and Bespoke Healthcare Affiliates may use Usage Data for any purpose in accordance with applicable Law and our Privacy Policy.
We welcome feedback, comments, suggestions to the Service, ideas, reviews, or other information about the Service (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Service or in any such Feedback. All Feedback becomes the sole and exclusive property of Bespoke Healthcare and we may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you. You hereby assign to us any and all right, title and interest (including any intellectual property rights) that you may have in and to any and all Feedback.
You acknowledge and agree that Bespoke Healthcare may preserve User Content and may also disclose User Content if required to do so by Law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable Law, or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Bespoke Healthcare, its users, or the public. You understand that the technical processing and transmission of the Service, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints: Bespoke Healthcare respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Bespoke Healthcare of your infringement claim in accordance with the procedure set forth below.
Bespoke Healthcare will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property Laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Bespoke Healthcare’s Copyright Agent at support@bespoke.healthcare (Subject line: “DMCA Takedown Request”). You may also contact the Copyright Agent by mail at:
Bespoke Healthcare
77 Van Ness Avenue, Mailbox #2018San Francisco, CA 94102
To be effective, the notification must be in writing and contain the following information:
a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
identification of the copyrighted work or other intellectual property that you claim has been infringed, or, if multiple copyrighted works or other intellectual property are covered by a single notification, a representative list of such works or other intellectual property;
identification of the content that is claimed to be infringing or to be the subject of infringing activity, and where the content that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the Law; and
a statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright or intellectual property owner or are authorized to act on the behalf of the owner of the copyright or intellectual property that is allegedly infringed.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the Law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
your physical or electronic signature;
identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
a statement by you, made under penalty of perjury, that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content to be removed or disabled; and
your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the Eastern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Bespoke Healthcare will send a copy of the counter-notice to the original complaining party informing them that Bespoke Healthcare may replace the removed content or cease disabling it within ten (10) business days. Unless the owner of the applicable copyrighted work or other intellectual property files an action seeking a court order against Bespoke Healthcare or the user, the removed content may be replaced, or access to it restored, within ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable Law, Bespoke Healthcare has adopted a policy of terminating, in appropriate circumstances and at Bespoke Healthcare’s sole discretion, the accounts of users who are deemed to be repeat infringers. Bespoke Healthcare may also at its sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
The Service may provide links or other access to services, sites, technology, and resources that are provided or otherwise made available by third parties (the “Third-Party Services”). Additionally, you may enable or log in to the Service via various online Third-Party Services, such as third-party wearable devices and health platforms like Apple Health, Fitbit, WHOOP, Garmin Connect, and Google Fit. Your access and use of the Third-Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and you may be required to authenticate or create separate accounts to use Third-Party Services on the websites or via the technology platforms of their respective providers. Some Third-Party Services will provide us with access to certain information that you have provided to third parties, including through such Third-Party Services, and we will use, store, and disclose such information in accordance with our Privacy Policy. For more information about the implications of activating Third-Party Services and our use, storage, and disclosure of information related to you and your use of such Third-Party Services within the Service, please see our Privacy Policy. Bespoke Healthcare has no control over and is not responsible for such Third-Party Services, including for the accuracy, availability, reliability, or completeness of information shared by or available through Third-Party Services, or on the privacy practices of Third-Party Services. We encourage you to review the privacy policies of the third parties providing Third-Party Services prior to using such services. You, and not Bespoke Healthcare or any Bespoke Healthcare Affiliate, will be responsible for any and all costs and charges associated with your use of any Third-Party Services. Bespoke Healthcare enables these Third-Party Services merely as a convenience and the integration or inclusion of such Third-Party Services does not imply an endorsement or recommendation. Any dealings you have with third parties while using the Service are between you and the third party. Bespoke Healthcare and Bespoke Healthcare Affiliates will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third-Party Services.
To the extent permitted under applicable Law, you agree to defend, indemnify, and hold harmless Bespoke Healthcare and Bespoke Healthcare Affiliates, and its and their respective officers, employees, directors, service providers, licensors, and agents (collectively, the “Bespoke Healthcare Parties”), from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service, or your violation of any rights of another. Bespoke Healthcare will provide notice to you of any such claim, suit, or proceeding. Bespoke Healthcare reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, and you agree to cooperate with any reasonable requests assisting Bespoke Healthcare’s defense of such matter. You may not settle or compromise any claim against the Bespoke Healthcare Parties without Bespoke Healthcare’s written consent.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE BESPOKE HEALTHCARE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
THE BESPOKE HEALTHCARE PARTIES MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS; (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
WITHOUT LIMITING THE FOREGOING, THE BESPOKE HEALTHCARE PARTIES MAKE NO WARRANTY OR REPRESENTATION REGARDING THE ACCURACY, COMPLETENESS, RELIABILITY, OR SUITABILITY FOR YOUR INDIVIDUAL CIRCUMSTANCES OF ANY AI-GENERATED OR OTHER CONTENT, PLANS, RECOMMENDATIONS, OR INSIGHTS, OR OF ANY COACHING OR OTHER INFORMATION OR SERVICES PROVIDED BY ANY COACH OR AFFILIATED PRACTITIONER, IN EACH CASE MADE AVAILABLE THROUGH THE SERVICE. YOU ACKNOWLEDGE THAT AI-GENERATED CONTENT MAY CONTAIN ERRORS OR INACCURACIES, AND THAT THE SERVICE IS NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE OR MEDICAL CONDITION. ANY RELIANCE ON THE SERVICE OR ANY CONTENT MADE AVAILABLE THROUGH THE SERVICE IS AT YOUR OWN RISK.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE BESPOKE HEALTHCARE PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING DAMAGES FOR LOSS OF GOODWILL, USE, OR DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE BESPOKE HEALTHCARE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY (INCLUDING ANY COACH OR AFFILIATED PRACTITIONER) ON THE SERVICE; (E) ANY PERSONAL INJURY, BODILY INJURY, EMOTIONAL DISTRESS, DEATH, OR OTHER ADVERSE HEALTH OUTCOME ARISING OUT OF OR RELATING TO YOUR USE OF, OR RELIANCE ON, THE SERVICE OR ANY CONTENT, PLAN, RECOMMENDATION, OR COACHING MADE AVAILABLE THROUGH THE SERVICE; OR (F) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL THE BESPOKE HEALTHCARE PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID BESPOKE HEALTHCARE IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “INDEMNIFICATION,” “DISCLAIMER OF WARRANTIES,” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Bespoke Healthcare, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Service, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and Bespoke Healthcare are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND BESPOKE HEALTHCARE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND BESPOKE HEALTHCARE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Pre-Arbitration Dispute Resolution
Bespoke Healthcare is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at support@bespoke.healthcare. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Bespoke Healthcare should be sent to Supamill Inc. dba Bespoke Healthcare, Attn: Legal, 77 Van Ness Avenue, Mailbox #2018, San Francisco, CA 94102 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Bespoke Healthcare and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Bespoke Healthcare may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Bespoke Healthcare or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Bespoke Healthcare is entitled.
Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org/. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Bespoke Healthcare and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Bespoke Healthcare agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. To the extent any Arbitration Fees are not specifically allocated to either Bespoke Healthcare or you under the AAA Rules, Bespoke Healthcare and you shall split them equally; provided that if you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of such Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of any Arbitration Fees, Bespoke Healthcare will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Bespoke Healthcare will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms of Service will continue to apply.
Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms of Service to the contrary, Bespoke Healthcare agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Bespoke Healthcare written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Bespoke Healthcare, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including for lack of use or if Bespoke Healthcare believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service may be referred to appropriate law enforcement authorities. Bespoke Healthcare may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Bespoke Healthcare may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Bespoke Healthcare and Bespoke Healthcare Affiliates will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service, and Bespoke Healthcare and Bespoke Healthcare Affiliates will have no liability or responsibility with respect thereto. Bespoke Healthcare reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service (together with the terms incorporated by reference herein) constitute the entire agreement between you and Bespoke Healthcare governing your access and use of the Service, and supersede any prior agreements between you and Bespoke Healthcare with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use Third-Party Services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Bespoke Healthcare submit to the personal and exclusive jurisdiction of the state and federal courts located within Fresno County, California. The failure of Bespoke Healthcare to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any Law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of these Terms of Service and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Bespoke Healthcare, but Bespoke Healthcare may assign or transfer these Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. As used in these Terms of Service, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service. Bespoke Healthcare will not be in default hereunder by reason of any failure or delay in the performance of its obligations where such failure or delay is due to civil disturbances, riot, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or unavailability of electrical power, network access or equipment, or any other circumstances or causes beyond Bespoke Healthcare’s reasonable control.
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted (a) via email at dca@dca.ca.gov; (b) in writing at: Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834; or (c) by telephone at (800) 952-5210 or (800) 326-2297 (TDD). Sacramento-area consumers may call (916) 445-1254 or (916) 928-1227 (TDD). You may contact us at Supamill Inc. dba Bespoke Healthcare, 77 Van Ness Avenue, Mailbox #2018, San Francisco, CA 94102, or by telephone at (443) 994-7726.
The Service is made available to the U.S. government with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Access or use of the Service (including the Software) by the U.S. government constitutes acknowledgement of our proprietary rights in the Service (including the Software).
Please contact us at support@bespoke.healthcare or by mail at Supamill Inc. dba Bespoke Healthcare, 77 Van Ness Avenue, Mailbox #2018, San Francisco, CA 94102 to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service.
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